European Stars And Stripes (Newspaper) - July 4, 1987, Darmstadt, Hesse Page 10 columns George will the stars and stripes saturday july 4,1987 Biden will regret sudden somersault on Bork if sen. Joseph Biden d-dcl., had a rep lation Tor seriousness he forfeited it in the 24 hours after Justice Lewis Powell announced his departure from the supreme court. Biden did much to achieve the opposite of his two goals he strengthened presi Dent Reagan s Case for nominating judge Robert Bork and he strengthened the democrats Case for not nominating Biden As president. Sin months ago Biden whose mood swings Cany him from Hamlet to hysteria was Given the chairmanship of the judiciary committee an example of handing a Man sufficient rope with which to hang himself. Now Biden the incredible shrinking presiden tial candidate has somersault a Over his flamboyantly advertised principles. Biden first said Bork was the sort of qualified conservative he could support. Say the administration sends up Dork and after our investigations he looks a lot like Justice Scalio. I d have to vote for him and if the special interest groups Lear me apart that s the Medicine i la have to take he said. That was before Biden heard from Liberal groups like the federation of women lawyers whose director decreed concerning Biden s endorsement of Bork he should retract his suddenly Biden was allergic to Medicine and began to position himself to do As Bidden. Either Biden changed his tune because groups were jerking his Leash or worse to prepare for an act of preemptive capitulation. He said that in Light of Powell s special role As a swing vote that often swung toward Biden s policy preference she wanted someone with an open proof of openness would be of course Opin ions that coincide with Biden s preferences. Biden said he did not want someone who has a predisposition on n objecting coincide with Biden s. Senators who oppose Bork will be breaking fresh ground in the held of partisanship. Opposition to boric former professor at Yale Law school former general judge on the . Court of appeals must be on naked political grounds. Opposition must assert the principle that senators owe presidents no deference in the selection of judicial nominees that jurisprudential differences Are always sufficient grounds for opposition that result oriented senators need have no compunction about rejecting nominees whose reasoning might not Lead to results the senators desire. If Biden does oppose Bork his behaviour and that of any senators who follow him will Mark a new stage in the descent of liberalism into cynicism an attempt to Tom Wicker Shah he keep it Down Billy do fill a void of principle with a raw assertion of Nower. Prof. Laurence tribe of Harvard offers a Patina of principle for S.C. an assertion arguing that the proper focus of confirmation hearings on an individual is not fitness As an individual but balance of the court As a this new theory of balance holds not merely Tiit once the court has achieved a series of Liberal results its disposition should be preserved. Rather the real theory is that there should never again be a bal Ancelo the right of whatever balance exists. Perhaps that expresses Harvard s understanding of history there is a leftward working Ratchet so social move ment is to the left and is irreversible. Continuity is a value that has its claims. But Many of the court rulings that liberals Revere school desegregation for example were judicial discontinuities reversing earlier decisions. Even if putting Bork on the Bench produces a majority for Flat reversal of the 14 year old abortion ruling restoring to the states their traditional rights to regulate abortion would re Stab a two the supreme court to fled us Lish the continuity of an american practice that has a history of Many More than 14 years. Besides that restoration would remit in Only slight changes in the status of abortion. The consensus on that subject has moved. Some states might ban third trimester abortions or restore rights that inc court in its extremism has trampled S.C. As the right of a Par ent of a minor to be notified when the child seek an abortion. But the Basic right to an abortion probably would be affirmed by stale Laws. Powell s resignation and Biden s performance have Given Reagan two timely benefits he has an occasion for showing that he still has the will to act on convictions and that he has an opponent he can beat. Biden says there should t be six or seven or eight or even five the Good news for Biden is that there is Only one Bork. The bad news for Biden is that the one will be More than a match for Biden in a confirmation process that is going to be easy. Ton pal or Tori Onop right sings different tune about ideology now hundreds of people in an audience at Chautauqua n.y., laughed out loud when attorney general Edwin Meese i told them thai president Rea Gan would apply no ideological test in choosing a replacement for Justice Lewis Powell of the supreme court. Senators considering the domination of Robert Bork who in 1973 delivered the hit on Archibald Cox for Richard Nixon have reason to laugh too when they hear advice like that of Daniel Popeo of the conservative Washington Legal foundation i Don t think it s responsible. If judicial nominee Are found qualified that the ideological disagree Merit with them is the kit basis Lor saving i hat they should not sit on the what rot Popeo and other deep thinkers of inc right would be singing an entirely different tune if Jimmy car Ter Weie Siili in office and bad nominated a flaming and indelible Liberal to the supreme court. Carter unfortunately had no Opportunity to nominate any kind of Justice in fact the naming and inflexible right did Ling a different tune in 1968 when president Johnson nominated Abe Fortai to be chief Justice. The song was called it prevented Fortas confirmation and it was orchestrated by the tireless and timeless sen. Strem Thurmond r-s.c., who s Dill around to be on the other Side this time. As i his wont Thurmond put the matter plainly in 1968 Fortas would t do because he was Content with the court s trend and willing to Lake these trends to further no doubt he now could say exactly the same thing about Bork but with in tent to justify this nomination that is precedent enough for any senator to laugh off the self serving argument of the right that any Reagan nominee with a Law degree and no jail record Piso Facia should be confirmed by a democratic Senate without regard to ideology. Bui if precedent in t enough Here Are Tome other reasons since Reagan already hat named two associate justices and elevated an other to the chief Justice ship and be fore leaving office will have named More than half of All Federal judges including S.C. dim lights As Daniel Manion it can hardly be said that a conservative president has been denied the Opportunity to influence the Judic iary. In giving the Senate the Power to confirm or reject a presidential Nomi nation for what is after All a third and co equal Branch of government the framers of the Constitution surety had the intent of giving the Senate equal responsibility Wilh the president in determining the court membership. If therefore and despite Meese s boffo disclaimer Reagan has made an Unarce Platy ideological nomination members of the Senate so disposed have every right to mount an opposition on ideological grounds. That is doubly applicable to this Case because the record shows that Powell was the present court s swing Man an open minded conservative whose support on some important mat ters occasionally enabled the court s Liberal bloc to prevail and to replace him with a Justice of fixed conservative views might drastically change the nature of the court and its rulings. Why should any senator who would honestly abhor that change in the court acquiesce in in merely because the Nom Inee like Bork has otherwise accept Able credentials this is not a question of Conser Vali visa or liberalism or even of Ide ology per be. If for instance the pre sent Senate were about to consider the name of Lewis Powell rather than that of his successor there can be Little question that Powell would and should be confirmed. His conservatism Wai not so ritual and rigid that it could be feared legitimately that he would do damage to the Constitution As even the most Liberal senator might View in. Is Robert Bork a conservative of S.C. open mindedness or might his accession to the supreme court pose an unrelenting threat to the values and beliefs of millions of americans rep resented by something near a majority of the Senate the judiciary commit tee and the Senate Are obligated to seek the answer each member arriving at it individually in accordance with that senator s own View of inc Consu ution and of judicial responsibility
